Plainitff owned the coprights to several Grateful Dead posters and concert tickets. Defendants published reduced size images of these items in a 480 page biography of the Grateful Dead.

The United States Court of Appeals for the Second Circuit has jurisdiction over federal trial court appeals in New York, Connecticut and Vermont.

The Second Circuit upheld the trial court decision that the use of plaintiff’s images was Fair Use authorized by the Copyright laws of the United States.

______[Opinion highlights and teaching points]

1. “Section 106 of the Copyright Act grants copyright holders a bundle of exclusive rights, including the right to “reproduce the copyrighted work in copies,” and the right “to prepare derivative works based upon the copyrighted work.” 17 U.S.C. § 106.”

2. “The fair use doctrine is a statutory exception to copyright infringement. Section 107 of the Copyright Act permits the unauthorized use or reproduction of copyrighted work if it is “for purposes such as criticism, comment, news reporting, teaching . . ., scholarship, or research.” 17 U.S.C. § 107.”

3. “The question is “whether the new work merely supersede[s] the objects of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.””

4. “n particular, the district court concluded that [defendant’s] use of images placed in chronological order on a timeline is transformatively different from the mere expressive use of images on concert posters or tickets. Because the works are displayed to commemorate historic events, arranged in a creative fashion, and displayed in significantly reduced form, the district court held that the first fair use factor weighs heavily in favor of [defendant].”

5. “In the instant case, DK’s [defendant’s] purpose in using the copyrighted images at issue in its biography of the Grateful Dead is plainly different from the original purpose for which they were created. Originally, each of BGA’s images fulfilled the dual purposes of artistic expression and promotion. The posters were apparently widely distributed to generate public interest in the Grateful Dead and to convey information to a large number people about the band’s forthcoming concerts. In contrast, DK used each of BGA’s images as historical artifacts to document and represent the actual occurrence of Grateful Dead concert events featured on Illustrated Trip’s timeline.

6. “This conclusion is strengthened by the manner in which DK displayed the images. First, DK significantly reduced the size of the reproductions.”

7. “Second, DK minimized the expressive value of the reproduced images by combining them with a prominent timeline, textual material, and original graphical artwork, to create a collage of text and images on each page of the book.”

8. “Third, BGA’s images constitute an inconsequential portion of Illustrated Trip. The extent to which unlicensed material is used in the challenged work can be a factor in determining whether a biographer’s use of original materials has been sufficiently transformative to constitute fair use.”